|
DocuSign Envelope ID:37AF196F-70A9-40BD-BDE0-4E0A39EC4A40
<br /> GENERAL TERMS AND CONDITIONS
<br /> (SERVICE)
<br /> Invoices are due and payable net cash upon receipt unless Customer performance shall be extended by a period equal to the time lost plus a
<br /> has applied and been approved for credit with Siemens, in which case reasonable recovery period and the compensation equitably adjusted
<br /> the invoice is payable within 30 calendar days of receipt by Customer to compensate for additional costs Siemens incurs due to such
<br /> or as otherwise set forth in this Agreement. If any payment is not circumstances.
<br /> received when due, Siemens may deem Customer to be in breach Article 7: Warranties;Disclaimers;Limitation of Liability
<br /> hereof and may enforce any remedies available to it hereunder or at 7.1 Labor in performing the Services is warranted to be free from
<br /> law, including without limitation, acceleration of payments and defects in workmanship for 90 days after the Services are performed.
<br /> suspension or termination of Services at any time and without notice, All labor provided by Siemens hereunder found to be defective and
<br /> and shall be entitled to compensation for Services previously otherwise qualifying under this warranty shall be re-performed by
<br /> performed and costs reasonably incurred in connection with the Siemens. Such re-performance hereunder shall not interrupt or
<br /> suspension or termination. In the event that any payment due prolong the terms of this warranty. In the event that any such re-
<br /> hereunder is not paid when due, Customer shall pay, upon demand, performance fails to cure such defects, then Customer's exclusive
<br /> as a late charge, one and one-half percent (1.5%) of the amount of remedy against Siemens for damages from any cause whatsoever,
<br /> the payment per month, limited by the maximum rate permitted by law whether in contract or tort, shall not exceed an amount equal to the
<br /> of each overdue amount under this Agreement. Customer shall limitation set forth in Section 7.9 herein.
<br /> reimburse Siemens' costs and expenses (induding reasonable 7.2 To the extent that Equipment is a Deliverable as part of the
<br /> attorneys' and witnesses' fees) incurred for collection under this Services under this Agreement, Equipment manufactured by Siemens
<br /> Agreement. If Customer disputes any portion or all of an invoice, it or bearing its nameplate shall be warranted for the earlier of one(1)
<br /> shall notify Siemens in writing of the amount in dispute and the reason year from the date of first beneficial use or from the date of installation
<br /> for its disagreement within 21 days of receipt of the invoice. The to be free from defects. To the extent that Software is a Deliverable
<br /> undisputed portion shall be paid when due, and interest on any unpaid as part of the Services for use in the Equipment or in a computer
<br /> portion shall accrue as aforesaid, from the date due until paid, to the owned by the Customer, Customer agrees to take delivery of any
<br /> extent that such amounts are finally determined to be payable to such Software subject to(i)any applicable Siemens or third party end-
<br /> Siemens. Notwithstanding any provision of this Agreement Siemens user license agreement (EULA) accompanying such Software, or(ii),
<br /> shall not declare a default unless Customer fails to cure the default if no EULA accompanies such Software, the EULA posted at
<br /> within twenty (20) business days of the receipt of written notice of wwwusa.siemens.com/btcpseula (Siemens' EULA web site) for
<br /> the default. such Software used in or with the Equipment identified by product
<br /> 5.4 Except to the extent expressly identified in this Agreement, model or part number on the Siemens EULA web site. Such
<br /> Siemens'fees do not indude any taxes, excises, fees, duties, permits Software shall be warranted in accordance with its applicable EULA
<br /> or other government charges related to the Services. Customer shall unless an exception is explicitly identified in the Document under this
<br /> pay such amounts or reimburse Siemens for any amounts it pays. If Agreement. For all other Equipment, Siemens hereby assigns to
<br /> Customer daims a tax exemption or direct payment permit, it shall Customer, without recourse, any and all assignable warranties
<br /> provide Siemens with a valid exemption certificate or permit and available from any manufacturer or supplier of such Equipment and
<br /> indemnify, defend and hold Siemens harmless from any taxes, costs such Software and will assist Customer in enforcement of such
<br /> and penalties arising out of same. assigned warranties.
<br /> 5.5 Unless agreed otherwise, the pricing for each year after the 7.3 The limited warranties set forth in Sections 7.1. and 7.2
<br /> Initial Term of this Agreement and each year of each renewal of the respectively, will be void as to, and shall not apply to, any Services,
<br /> Agreement shall be determined as the immediate prior year price Equipment or Software(i) repaired, altered or improperly installed by
<br /> plus a price escalator based upon the U.S. Department of Labor, any person other than Siemens or its authorized representative; (ii)
<br /> Bureau of Labor Statistics Urban Consumer Price Index-All Urban Equipment subjected to unreasonable or improper use or storage,
<br /> Consumers U.S. All items, 1982-1984=100 ("CPI-U'). In addition, used beyond rated conditions, operated other than per Siemens' or
<br /> each renewal term pricing shall be adjusted for any additions or manufacturer's instructions, or otherwise subjected to improper
<br /> deletions to Services selected for the renewal term. The price maintenance, negligence or accident, by Customer or others; (iii)
<br /> escalator shall be the latest semi-annual CPI-U identified above damaged because of any use of the Equipment after Customer has,
<br /> published prior to each annual anniversary. This escalator shall be or should have knowledge of any defect in the Equipment.
<br /> applicable to each annual term, whether a renewal term or an 7.4 Any daim under the limited warranties granted above must be
<br /> annual term after the first year of the Initial Term. made in writing to Siemens within thirty (30) days after discovery of
<br /> Article 6: Changes;Delays;Excused Performance the daimed defect unless discovered directly by Siemens. Such
<br /> 6.1 As the Services are performed, conditions may change or limited warranty only extends to Customer and not to any subsequent
<br /> circumstances outside Siemens' reasonable control (such as changes owner of the Equipment. As to the Equipment, Customer's sole and
<br /> of law)may develop which require Siemens to expend additional costs, an exdusive remedy for any Equipment found to be defective during
<br /> effort or time to complete the Services, in which case Siemens shall the warranty period is repair or replacement of the parts or
<br /> notify Customer and an equitable adjustment made to the components found to be defective.
<br /> compensation and time for performance. In the event conditions or 7.5 THE EXPRESS LIMITED WARRANTIES PROVIDED ABOVE
<br /> circumstances require Services to be suspended or terminated, ARE IN LIEU OF AND EXCLUDE ALL OTHER WARRANTIES,
<br /> Siemens shall be compensated for Services performed and for costs STATUTORY, EXPRESS, OR IMPLIED, INCLUDING WITHOUT
<br /> reasonable incurred in connection with the suspension or termination. LIMITATION ALL EXPRESS OR IMPLIED WARRANTIES OF
<br /> 6.2 Siemens shall not be responsible for loss, delay, injury, damage MERCHANTABILITY OR FITNESS FOR A PARTICULAR
<br /> or failure of performance that may be caused by circumstances PURPOSE, QUALITY, CAPACITY, OR WORKMANSHIP, ALL
<br /> beyond its control, including but not limited to acts or omissions by EXPRESS OR IMPLIED WARRANTIES AGAINST THIRD PARTY
<br /> Customer or its employees, agents or contractors, Acts of God, war, INTELLECTUAL PROPERTY ("IP') INFRINGEMENTS (INCLUDING
<br /> terrorism, civil commotion, acts or omissions of government PATENT, COPYRIGHT AND OTHER REGISTERED OR
<br /> authorities, fire, theft, corrosion, flood, water damage, lightning, UNREGISTERED THIRD PARTY IP RIGHTS) OR DEFECTS,
<br /> freeze-ups, computer viruses, program or system hackers, strikes, WHETHER HIDDEN OR APPARENT, AND EXPRESS OR IMPLIED
<br /> lockouts, differences with workmen, riots, explosions, quarantine WARRANTIES WITH RESPECT TO COMPLIANCE OF THE
<br /> restrictions, delays in transportation, or shortage of vehides, fuel, COVERED EQUIPMENT AND DELIVERABLES WITH THE
<br /> labor or materials. In the event of any such circumstances, Siemens REQUIREMENTS OF ANY LAW, REGULATION, SPECIFICATION
<br /> shall be excused from performance of the Services and the time for OR CONTRACT RELATIVE THERETO, WHICH ARE HEREBY
<br /> Siemens Industry,Inc.,Building Technologies Division 3 of 6
<br /> For:Orange County
<br />
|